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2017 Supreme(Raj) 1874
IN THE HIGH COURT OF RAJASTHAN BENCH AT JAIPUR
PANKAJ BHANDARI, J.
SURESH - Appellant
Versus
STATE OF RAJASTHAN - Respondent
S.B. Criminal Revision No. 1205, 128, 236, 1206 of 2016
Decided on : 28-08-2017
For the Appellant :Ms. Sikha Parnami, Advocate.
For the Respondent:Mr. Dileep Singh Jadaun, Advocate.
Headnote:
Protection of Women From Domestic Violence Act, 2005 – Sections 12, 18, 19, 20 and 22 – I.P.C – Section 498-A – Cr.P.C., 1973 – Section 125 – Revision Against Maintenance under Domestic Violence Act – It is further contended(by Petitioner-husband) that the factum of the entering into second marriage was not proved before the Court below – It is also contended that on the date when the order was passed under the Domestic Violence Act, there was no order passed by the Court under Section 498-A I.P.C, therefore, there was no material before the Court on the date of passing of the order with regard to commission of domestic violence – It is also contended that there was a finding of the trial Court that the wife left in the year 2009, injury report was of 2010. A false case under the Domestic Violence Act was made by the wife – Counsel for the wife has opposed the revision petition – His contention is that the husband has entered into second marriage and has a child from second marriage – Held, The prerequisite for passing an order under the provision of the Protection of Women from Domestic Violence Act, 2005 is the satisfaction of the Court that domestic violence has taken place – The (trail)Court held that since the wife is residing separately for four year, the only reason for living separately was the behaviour of the husband – There was no conclusion of the Court with regard to commission of domestic violence rather the Court observed that since the wife was living separately since 2009, therefore, there was domestic violence – There being no finding of commission of domestic violence only on assumption that the wife was living separately, therefore, it implies that the behaviour of the husband was not proper does not afford a valid reason for coming to the conclusion that there was domestic violence – The fact of lodging of F.I.R. under Section 498-A I.P.C. and the conviction also do not come in aid of the wife for the very reason that the conviction order dated 09.04.2015 is subsequent to the order dated 12.04.2014 passed under the Domestic Violence Act – Be that as it may, the husband entering a Nata marriage even if assumed to be true does not fall within definition of domestic violence more particularly when there is a negative final report – The preresuisite of domestic violence having been committed was not established before the Court below, hence, both the Courts below have committed perversity in allowing the application under Section 19, 20 and 22 of the Act – The Court below has further committed perversity in not placing reliance on the report of the Protection Officer and without discussing the same has erred in coming came to the conclusion about commission of domestic violence – In view of the same, there being no proof about commission of domestic violence and there being no report of protection officer that domestic violence has taken place, there was no justification for the Court below to pass orders under Sections 19, 20 and 22 of the Act – The Revision Petition Nos.1205 and 1206, therefore, deserve to be and are, accordingly, allowed – The impugned orders passed by the Court below are quashed and set aside – The Revision Petition Nos. 128 and 236 filed by the wife for enhancing the compensation deserve to be dismissed as the impugned order have been set aside by this Court on the ground that there was no domestic violence, hence, there was no justification for awarding any compensation or maintenance – Order Accordingly
PANKAJ BHANDARI, J.
1. Criminal Revision Nos.1205/2016 has been preferred by husband and 1206/2016 has been preferred by mother-in-law and father-in-law aggrieved by the judgment and order dated 12.04.2014 passed by Additional Civil Judge (J.D.) and Judicial Magistrate, Kishangarh who awarded Rs. 2,500/- per month under Section 19 for residence, Rs. 2,000/- per month for maintenance under Section 20 and Rs. 1,00,000/- as one time compensation under section 22 of the Protection of Women From Domestic Violence Act, 2005 and against the judgment and order dated 21.11.2015 passed by Additional Sessions Judge, Kishangarh whereby the appeal was partly allowed and the amount awardable as maintenance was directed to be adjusted with the amount awarded in other proceedings, the appellate Court further reduced the one time compensation from Rs. 1,00,000/- to Rs. 25,000/- under section 22 of the Protection of Women From Domestic Violence Act, 2005.
2. Criminal Revision Nos.128/2016 and 236/2016 have been preferred by wife Smt. Seema aggrieved by the order of the appellate Court dated 21.11.2015 vide which the appellate Court has reduced the one time compensation from Rs. 1,00,000/- to Rs. 25,000/- and against the direction that the maintenance payable would be adjusted with the maintenance payable under other proceedings. Wife has also claimed that the maintenance under the Protection of women from Domestic Violence Act, 2005 be enhanced.
3. Briefly stated facts of the case are that the marriage of Suresh and Seema took place on 17.04.2009 an F.I.R. was lodged by Smt. Seema on 01.05.2010. The proceedings under the Protection of women from Domestic Violence Act was initiated on 04.05.2010 and application under Section 125 Cr.P.C., 1973 was filed on 18.12.2010. The order under the Protection of women from Domestic Violence Act was passed by the trial Court on 12.04.2014 and husband Suresh was convicted under Section 498-A I.P.C. on 09.04.2015.
4. It is contended by counsel for petitioner-husband, Suresh that the orders passed under the Protection of women from Domestic Violence Act could not have been passed by the Court as Sections 18, 19, 20 and 22 of the Act applies only when the Court is satisfied that domestic violence has taken place. It is also contended that the Courts below have not considered the report of the Protection Officer which is required to be considered in view of Section 12 of the Act.
5. It is contended that the Protection Officer has given a specific report that the wife is not ready to stay with her husband as she wants to lead a luxurious life. It is also contended that the Court below has erred in not relying on the report of the Protection Officer on the ground that the Protection Officer has not examined witnesses.
6. Counsel for the petitioner has drawn my attention towards the order passed by the Judicial Magistrate, Kishangarh dated 12.04.2014, wherein, the Court has held that the complainant-wife failed to prove that she was subjected to cruelty.
7. It is contended that the Court has come to the conclusion that there is domestic violence as the wife is living separately for last four years and the only possibility why she was living separately could be the behaviour of the husband. It is also contended that the husband was continuously making a prayer before the Court that he is willing to keep the wife but the wife refused on the grounds that she wants to stay in the matrimonial home and is not willing to stay in rented premises with the petitioner.
8. It is also contended that the wife was living with her parents and she has admitted in her cross-examination that no incident took place on 26.04.2010. It is also urged that there being no incident of cruelty, there was no domestic violence and consequently, the impugned orders suffer from perversity.
9. It is also contended that the wife built up a case that the husband has entered into a 'Nata' marriage and filed a complaint alleging that the petitioner ha
